AMENDED AND RESTATED
CHANGE OF CONTROL SEVERANCE AGREEMENT
This Change of
Control Severance Agreement (the “Agreement”) is made
and entered into by and between
(“Executive”) and Evergreen Solar, Inc. (the
“Company”), effective as of
(the “Effective Date”).
1. It is
expected that the Company from time to time will consider the
possibility of an acquisition by another company or other change of
control. The Board of Directors of the Company (the
“Board”) recognizes that such consideration can be a
distraction to Executive and can cause Executive to consider
alternative employment opportunities. The Board has determined that
it is in the best interests of the Company and its stockholders to
assure that the Company will have the continued dedication and
objectivity of Executive, notwithstanding the possibility, threat
or occurrence of a Change of Control (as defined herein) of the
Company.
2. The Board
believes that it is in the best interests of the Company and its
stockholders to provide Executive with an incentive to continue his
employment and to motivate Executive to maximize the value of the
Company upon a Change of Control for the benefit of its
stockholders.
3. The Board
believes that it is imperative to provide Executive with certain
benefits upon a Change of Control and with certain severance
benefits upon Executive’s termination of employment following
a Change of Control. These benefits will provide Executive with
enhanced financial security and incentive and encouragement to
remain with the Company notwithstanding the possibility of a Change
of Control.
4. Certain
capitalized terms used in the Agreement are defined in
Section 7 below.
NOW, THEREFORE, in
consideration of the mutual covenants contained herein, the parties
hereto agree as follows:
1. Term
of Agreement . This Agreement will have a term of three
(3) years commencing on the Effective Date. On the third
anniversary of the Effective Date, and on each annual anniversary
of the Effective Date thereafter, this Agreement automatically will
renew for an additional one (1)-year term unless either party
provides the other party with written notice of non-renewal at
least thirty (30) days prior to the date of automatic
renewal.
2.
At-Will Employment . The Company and Executive acknowledge
that Executive’s employment is and will continue to be
at-will, as defined under applicable law, except as may otherwise
be specifically provided under the terms of any written formal
employment agreement between the Company and Executive (an
“Employment Agreement”). If Executive’s
employment
terminates for
any reason, including (without limitation) any termination not set
for in Section 4 hereof, Executive will not be entitled to any
payments, benefits, damages, awards or compensation other than as
provided by this Agreement or under Executive’s Employment
Agreement.
3.
Acceleration of Vesting on Change of Control . Upon the
consummation of a Change of Control (i) Executive’s
outstanding equity awards, including without limitation stock
options and restricted stock, will immediately vest and become
exercisable or become released from the Company’s repurchase
or reacquisition right as to (A) that number of unvested
shares that would have vested during the period between the equity
awards’ most recent vesting date (or grant date if no vesting
date has been reached) and the Change of Control if the equity
awards had been granted with a monthly vesting schedule and
(B) that number of unvested shares that would have otherwise
vested during the last twelve (12) months of each equity
awards’ vesting schedule, and (ii) all performance
targets for all of Executive’s performance-based equity
awards will be deemed fully achieved on the first anniversary of
the Change of Control if Executive is employed on such
date.
(a)
Termination without Cause or Resignation for Good Reason in
Connection with a Change of Control . If the Company or its
Affiliates terminate Executive’s employment with the Company
or its Affiliates, respectively, without Cause or Executive resigns
from such employment for Good Reason within twelve (12) months
following a Change of Control, then Executive will receive the
following severance from the Company beginning 60 days after
termination of employment, or such earlier date after termination
as may be determined in the Company’s sole discretion,
provided that Executive has executed a separation agreement and
release of claims (in a form acceptable to the Company) and, if
applicable under the Older Workers Benefit Protection Act, has not
revoked such release within the 7-day revocation period after
executing it. Failure to return the release within the applicable
period specified in the release, or, if applicable, revoking the
release within the 7-day revocation period after executing the
release, will result in forfeiture of the severance.
(i)
Accrued Compensation . The Company will pay Executive all
accrued but unpaid vacation, expense reimbursements, wages, and
other benefits due to Executive under any Company-provided plans,
policies, and arrangements.
(ii)
Severance Payment . Executive will receive monthly severance
payments (less applicable withholding taxes) for twelve
(12) months following Executive’s termination equal to
(A) one-twelfth of Executive’s annual base salary as in
effect immediately prior to Executive’s termination date or
(if greater) at the level in effect immediately prior to the Change
of Control, and (B) one-twelfth of Executive’s target
bonus for the year of Executive’s termination. Subject to
Section 5, the Company will pay the severance payments to
which Executive is entitled as salary continuation on the same
basis and timing as in effect immediately prior to the Change of
Control.
(iii)
Equity . All of Executive’s outstanding equity awards,
including without limitation stock options and restricted stock,
will immediately vest and become exercisable or become released
from the Company’s repurchase or reacquisition
right.
2
(iv)
Continued Employee Benefits . Executive will receive
Company-paid coverage for a period of twelve (12) months for
Executive and Executive’s eligible dependents under the
Company’s Benefit Plans.
For purposes of
this Section 4(a), if Executive’s employment with the
Company or one of its Affiliates terminates, he will not be
determined to have been terminated without Cause, if he continues
to remain employed by the Company or one of its Affiliates (e.g.,
upon transfer from one Affiliate to another); provided, however,
that the parties understand and acknowledge that any such
termination could potentially result in Executive’s ability
to resign for Good Reason.
(b)
Voluntary Resignation; Termination for Cause . If
Executive’s employment with the Company or its Affiliates
terminates (i) voluntarily by Executive (other than for Good
Reason within twelve (12) months following a Change of
Control) or (ii) for Cause by the Company, then Executive will
not be entitled to receive severance or other benefits except for
those (if any) as may then be established under the Company’s
then existing severance and benefits plans and practices or
pursuant to other written agreements with the Company, including,
without limitation, any Employment Agreement.
(c)
Disability; Death . If the Company terminates
Executive’s employment as a result of Executive’s
Disability, or Executive’s employment terminates due to his
death, then Executive will not be entitled to receive severance or
other benefits except for those (if any) as may then be established
under the Company’s then existing written severance and
benefits plans and practices or pursuant to other written
agreements with the Company, including, without limitation, any
Employment Agreement.
(d)
Exclusive Remedy . In the event of a termination of
Executive’s employment as set forth in Section 4(a), the
provisions of this Section 4 are intended to be and are
exclusive and in lieu of any other rights or remedies to which
Executive or the Company may otherwise be entitled, whether at law,
tort, contract, or in equity. Executive will be entitled to no
benefits, compensation or other payments or rights upon termination
of employment following a Change of Control other than those
benefits expressly set forth in this Section 4.
(a)
Distributions . Notwithstanding anything to the contrary in
this Agreement, if Executive is a “specified employee”
(as defined in Section 409A of the Internal Revenue Code of
1986, as amended (the “Code”) and the final regulations
and any guidance promulgated thereunder
(“Section 409A”), and as applied according to
Company procedures) at the time of Executive’s termination,
then only the amounts payable to Executive, if any, pursuant to
this Agreement (the “Separation Benefits”) which are
exempt from Section 409A because (i) such Separation
Benefits will not and could not under any circumstances, regardless
of when such termination occurs, be paid later than the fifteenth
day of the third month of the Company’s fiscal year following
Executive’s termination (the “Short-Term Deferral
Limit”) or (ii) such Separation Benefits do not exceed
the Involuntary Separation Pay Limit (as defined below), may be
made within the first six (6) months following
Executive’s termination of employment in accordance with the
payment schedule applicable to each such payment or benefit. For
these purposes, each severance payment and benefit
3
is hereby
designated as a separate payment and will not collectively be
treated as a single payment. Any portion of the Separation Benefits
not exempt from Section 409A under the Short-Term Deferral
Limit and/or in excess of the Involuntary Separation Pay Limit
shall accrue and, to the extent such portion of the Separation
Benefits would otherwise have been payable within the first six
(6) months following Executive’s termination of
employment, will become payable, without interest, on the first to
occur of the following: (x) the first payroll date that occurs
on or after the date six (6) months and one (1) day
following the date of Executive’s termination of employment,
or (y) Executive’s death. All subsequent Separation
Benefits, if any, will be payable in accordance with the payment
schedule applicable to each payment or benefit.
(b)
Amendment . This provision is intended to comply with the
requirements of Section 409A so that none of the severance payments
and benefits to be provided hereunder will be subject to the
additional tax imposed under Section 409A, and any ambiguities
herein will be interpreted to so comply. The Company and Executive
agree to work together in good faith to consider amendments to this
Agreement and t
|
